Lesson 4: Conceptual Issues

Due Process

All countries accord the accused certain procedural protections when faced with prosecution, or punishment. The notion of "due process" counterbalances the State's powers to arrest, prosecute, and carry out the sentence of a conviction.

Among the protections internationally accepted as included in the notion of "due process" are:

the right to be presumed innocent;

the right to a fair trial; and

the right to assistance of counsel.

Concerns have been raised about the ability of restorative processes to protect the accused's due process rights, since entrance into these processes often requires admission of guilt. This raises the question of informed consent and voluntary waiver of right.

Mediation usually requires the accused to relinquish his/her rights to contest charges and to legal counsel in turn for the opportunity to negotiate his or her sanction. Accused individuals may agree to mediation, admitting guilt, when in fact the accused is not legally guilty, in order to avoid a complicated, lengthy disposition in a formal setting. To protect the due process rights of the accused, the accused should not be required to waive legal counsel for the duration of the process, and that no agreement should be final without review and approval of the accused's lawyer.

Some have argued that without court oversight of police investigatory powers, restorative programs run the risk of undermining procedural protections to be free of unlawful searches and seizures and excessive uses of force. The admission of guilt required by most restorative programs suspends the court's scrutiny of prior investigative techniques. At the adjudicatory stage, restorative processes, and informal responses generally, have the potential to induce the accused to admit to facts and/or guilt despite the accused's innocence, in order to get a speedy, informal process.

A restorative justice system would need to address such concerns. Here are some approaches that might be considered:

Presumption of Innocence

In traditional criminal justice, the State bears the burden of proving the accused's guilt. Unless and until that burden is carried by the State, the accused is presumed innocent. However, some restorative processes require an admission of guilt, others a declination to deny guilt, and still others some acceptance of civil liability. In this sense, restorative processes may compromise the accused's right to a presumption of innocence.

Two means of preserving this right to a presumption of innocence could be available in a restorative intervention: (1) the accused could retain the right to terminate the restorative process in order to deny guilt, opting for a formal process at which guilt would necessarily have to be proven and (2) the accused could retain the right to appeal to the courts to have an agreement reached in a restorative process struck down, if they were not aware of legal defences (or mitigating circumstances) available to them at the time they admitted guilt.

In addition, legal counsel should be available at all times to inform the accused of the implications of his/her participation in a restorative process. The American Bar Association has recommended that participation in a restorative process should not be considered a formal admission of guilt, and that statements made in the process should be inadmissible in a formal court proceeding .

The Right to a Fair Trial/Coercion

To the extent that formal processes remain available to the accused at all times during and after a restorative process, the accused's right to a fair trial has been preserved. However, if the accused is required to waive this right to participate in a restorative process, the accused must be informed of the implications of his/her decision to opt for the restorative intervention. As an additional protection, the accused could be allowed to appeal any agreement reached in a restorative process on grounds of innocence.

Warner has argued that since restorative processes offer an alternative to uncertain, costly and lengthy formal court proceedings, they might be so attractive as to amount to "coercion" inducing the accused to forgo a trial. This concern, of course, is not unique to restorative interventions; it applies as well to existing, accepted alternatives to a full-length trial, such as pleas of guilty or diversion programmes. There seems to be no reason to believe that this form of "coercion" should raise more concern with restorative process that with other alternatives currently used by criminal justice officials.

Providing the traditional system as an alternative, exacting no less accountability from the offender than the traditional system would otherwise, and allowing the victim and offender to dominate participation in the restorative process should minimize coercion. In this way, coercion may be minimized. Minimizing coercion when possible is important not simply in deference to the due process rights of individuals, but also because coercion could have a deleterious effect on the restorative process itself.

The Right to Assistance of Counsel

At all points during the restorative informal process the accused could be informed and reminded of his/her rights; the most effective means of assuring informed decision-making is through the assistance of legal counsel.

However, restorative justice advocates argue that once the accused chooses to participate in a restorative process he/she should primarily act and speak on his/her own behalf. Their position is that to allow attorneys to represent the participants at all points during the restorative process would be to destroy many of the intended benefits of the encounter, such as direct communication and expression of feelings, and proactive collective decision-making. To allow attorneys to take over the process would be to "essentially re-formalize processes designed to be informal". However, attorneys can also be very helpful in advising their clients on the best possible outcome that can and should be expected.